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Nguyen v R

Nguyen v R

Case [2019] NSWCCA 209 18 September 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nguyen v R [2019] NSWCCA 209
Hearing dates: 14 August 2019
Date of orders: 18 September 2019
Decision date: 18 September 2019
Before: Brereton JA at [1]
Johnson J at [17]
Lonergan J at [89]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – primary offence of cultivating not less than commercial quantity of cannabis by enhanced indoor means contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985 – two Form 1 offences of cultivation – one Form 1 offence of dealing with proceeds of crime – objective seriousness of primary offence assessed separately before taking into account Form 1 offences – no error demonstrated in assessing objective seriousness – general and specific deterrence important aspects on sentence for cultivation offences – other sentencing decisions assist but do not establish correct range – selection of cases do not include multiple cultivation offences – sentence not unreasonable or plainly unjust – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
Anderson v Director of Public Prosecutions [1978] AC 964
Andreata v R [2015] NSWCCA 239
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Crowley v R [2017] NSWCCA 99
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hunter v R [2011] NSWCCA 141
Khoury v R [2011] NSWCCA 118
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mun v R [2015] NSWCCA 234
Nguyen v R [2008] NSWCCA 322
Nguyen v R [2009] NSWCCA 181
Nguyen v R [2012] NSWCCA 42
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pham v R [2009] NSWCCA 266
Portolesi v R [2012] NSWCCA 157
R v Georgopoulos [2010] NSWCCA 246
R v Jones [1978] Tas SR 126
RL v R [2018] NSWCCA 274
RO v R [2019] NSWCCA 183
Tan v R [2013] NSWCCA 164
Tepania v R [2018] NSWCCA 247
Tran v R [2018] NSWCCA 220
Truong v R [2009] NSWCCA 41
Vu v R [2018] NSWCCA 122
Wei v R [2015] NSWCCA 66
Texts Cited: ---
Category: Principal judgment
Parties: Ha Son Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms K Stares (Applicant)
Mr D Patch (Respondent)
Solicitors:
Legal Aid, NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/180298
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

---

Date of Decision:

13 July 2018

Before:

Judge Maiden SC

File Number(s):

2017/180298; 2017/251185

Judgment

BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen v R

Details

AGLC: Nguyen v The Queen [2019] NSWCCA 209
Case: [2019] NSWCCA 209
Decision Date: 18 September 2019

CaseChat Overview and Summary

The appeal in Nguyen v R involved the appellant, Nguyen, who was convicted of cultivating not less than a commercial quantity of cannabis using enhanced indoor means, a violation of section 23(2)(a) of the Drug Misuse and Trafficking Act 1985. In addition to the primary offence, Nguyen was charged with two counts of cultivating cannabis under Form 1 and one count of dealing with the proceeds of crime, also under Form 1. The appeal was focused on the sentence imposed by the court, specifically arguing that the sentence was unreasonable or plainly unjust. The High Court was tasked with reviewing the sentence and determining whether the trial judge erred in assessing the objective seriousness of the primary offence and in applying the principles of general and specific deterrence.

The court considered the legal issues surrounding the assessment of the objective seriousness of the primary offence, whether it was appropriately evaluated before taking into account the Form 1 offences, and if the trial judge correctly applied the principles of general and specific deterrence. The court also examined whether the sentence imposed was unreasonable or plainly unjust, considering other relevant sentencing decisions. The High Court concluded that there was no demonstrated error in the trial judge’s assessment of the objective seriousness of the primary offence. The importance of general and specific deterrence in sentencing for cultivation offences was acknowledged, and while other sentencing decisions were helpful, they did not establish a correct range of sentences for multiple cultivation offences. The selection of cases used for comparison did not include similar multiple cultivation offences.

The High Court found that the sentence was not unreasonable or plainly unjust, given the particular circumstances of the case and the principles of general and specific deterrence. The court dismissed the appeal, affirming the trial judge’s assessment of the objective seriousness of the primary offence and the overall sentence imposed. The decision emphasised that the trial judge’s approach to sentencing, including the consideration of general and specific deterrence, was appropriate and that the sentence reflected the seriousness of the offences committed.

Orders